No retrial

The international crimes tribunals yesterday rejected retrial petitions of four Jamaat-e-Islami leaders facing crimes against humanity charges, removing the apparent barrier to the trial proceedings' progress.
The progress of trial proceedings of former Jamaat ameer Ghulam Azam, its Ameer Motiur Rahman Nizami, Nayeb-e-Ameer Delawar Hossain Sayedee, and Assistant Secretary General Muhammad Kamaruzzaman, which went into hibernation for the last couple of weeks, could now go on.
Tribunal-1 rejected the petitions of Ghulam Azam, Nizami and Sayedee while Tribunal-2 rejected Kamaruzzaman's petition yesterday.
Tribunal-1 in its order said, “Hacking is a crime and the defence could not produce any document to show that the hacked documents are admissible in evidence.
“As such the prayers for recalling the order of taking cognisance of offence and framing of charge is thus rejected,” said Tribunal-1 Chairman Justice ATM Fazle Kabir.
Justice Jahangir Hossain Selim and Justice Anwarul Haque are the other two members of the tribunal.
Tribunal-2 on the other hand rejected the petition of Kamaruzzaman as it did not find any merit of it to consider.
The defence of the Jamaat leaders had filed three retrial petitions before Tribunal-1 over the alleged Skype and email conversations between former tribunal-1 chairman Justice Md Nizamul Huq and an expatriate legal expert Ahmed Ziauddin which was published by a Bangla daily.
Showing personal reasons, Justice Huq resigned amid the controversy. Following his resignation the government reconstituted tribunals.
No sooner had Justice Kabir took charge of Tribunal-1, the defence filed petitions for recalling the order of taking cognisance of offence against Ghulam Azam and framing charges against Nizami, Sayedee and Ghulam Azam, which in other words meant reinitiating the trial.
DEFENCE SUBMISSIONS
Five defence counsels Moudud Ahmed, Abdur Razzaq, Mizanul Islam, Khandker Mahbub Hossain and Rafiqul Islam Miah placed their submissions for the petitions.
BNP standing committee member Moudud, on December 23, quoting the alleged Skype conversation, claimed that the order of framing charge was given from abroad, therefore as per section 6 (2A) of the International Crimes (Tribunals) Act, 1973, the order should be recalled to ensure justice.
Chief defence counsel for the accused leaders of Jamaat Razzaq claimed that the final formal charge was also prepared by Ziauddin.
He said the tribunal could exercise its inherent power to ensure justice and retry the cases.
Another defence counsel Mizanul Islam quoting the alleged conversation claimed that former tribunal chairman did not perform his judicial work independently.
PROSECUTION'S SUBMISSION
Attorney General Mahbubey Alam said the documents, undisputedly obtained through hacking, were the products of illegal and punishable act and the defence could not claim to have any remedy relying on such documents.
He prayed the tribunal not to pass any order based on the illegal documents.
Prosecutor Haidar Ali said the chairman alone was not the tribunal. Every charge framing order was passed by three judges of the tribunal.
He said for the sake of argument, if participation of the former chairman was excluded, even then the charge framing orders were passed by the majority of judges who stand good since the two judges did not disown the said orders.
DISCUSSION, REASONS AND DECISION
Tribunal-1 Chairman Justice Kabir said, “Undeniable the matter of hacking of alleged private communications and illegal recordings of conversation itself is a crime and extremely unethical.
“This is a crime committed with a malafide intention.”
“Who hacked and illegally recorded it? When? In which country? All these relevant questions are to be resolved first before we take all those into account,” he said, adding that answers to these questions remain unclear in the petitions.
He said the application as it appeared was based on the transcript of allegedly recorded Skype conversations published by a Bangla daily.

He said respecting the institutional dignity of the tribunal, The Economist had not yet published the entire conversations obtained illegally, except a few, and it does not intend to disclose the source of those materials obtained through hacking.
“But, surprisingly local daily Amar Desh started publishing the conversations allegedly made by the former chairman ignoring minimum ethics,” Justice Kabir said.
The chairman said the final decision or verdict in no way would be based merely on the charges framed, and the evidence adduced was to be evaluated only for reaching a decision as to how far the prosecution had been able to establish the charges.
“In the process of such task of evaluation of evidence before us, the hacked email communication and illegally obtained Skype conversation shall in no way have any impact causing prejudice to either party,” he said.
Tribunal's sacred and bounden responsibility is to act on evidence already adduced or to be adduced by both parties by affording rights of defence. The tribunal is obliged by the statute to make it guaranteed, the Tribunal-1 chairman said.
Mentioning the defence prayer of exercising inherent power of the tribunal for retrial, Justice Kabir said, “It is settled principle of law that inherent power of a court cannot be invoked where there is an express provision in the act.”
He then quoted section 6 (6) of the act which said in the event of any change in the membership, the tribunal might proceed from the stage of the case from where such change took place.
“Thus we find no reason to exercise inherent power in the above legal contest and factual position,” he said, adding that the tribunal did not view it necessary to recall any order or witness.
The tribunal also observed that all the orders of framing charges had been passed by three judges, not by the former Tribunal-1 chief alone.
“Apart from the former chairman, the rest two judges did not disown the said orders and as such those orders stand good for every purpose,” he said.
Rejecting the petitions, Justice Kabir said the order is applicable for three petitions.
Justice Kabir then fixed January 7 for the prosecution's closing argument in Ghulam Azam's case.
The tribunal, however, said it would rehear both prosecution and defence summation of closing arguments in Sayedee's case as Tribunal-1 was reconstituted after the arguments. It fixed January 13-17 for this purpose.
The tribunal fixed January 10 for proceeding with Nizami's case.
Showing respect to the judges, chief defence counsel Razzaq in his reaction before journalists said the order was incorrect.
Apparently hinting at Justice Nizamul and Ahmed Ziauddin, Razzaq also said for reasons best known to the tribunal judges, they had chosen to carry the burden of those two men.
Meanwhile, the defence of Kamaruzzaman filed his retrial petition through the registrar office of the tribunal and Tribunal-2 yesterday heard the defence and the prosecution before rejecting the petition.
Tribunal-2 fixed January 7 for recording the testimony of the 16th prosecution witness in the case.